Statute and theories of vicarious liability

In the last century, there has been intermittent debate as to which of two theories, master’s tort theory or servant’s tort theory, forms the legal basis for vicarious liability. The master’s tort theory holds that an employer is liable because the acts of an employee (‘servant’) are attributed to the employer (‘master’), whereas the servant’s tort theory holds that the liability of the employee is attributed to the employer. In most cases, the choice of theory does not affect the outcome: neither theory focuses on the content or scope of vicarious liability, and both appear in part to describe the mechanism of liability.
The purpose of this article is not to advocate for the superiority of one or other of the theories. Rather, our purpose is to assess the utility of the debate itself and the role, if any, that these theories play in answering contemporary cases. Significantly, many of the situations where the choice of theory might matter arise in statutory contexts, and the outcomes of cases are thus closely associated with the interpretation of statutory duties and, more so, protections. A close consideration of the statutory contexts demonstrates a fundamental point not previously highlighted in debates about the master’s tort and
servant’s tort theories: statutory interpretation and associated policy drive the outcomes of the cases, with the chosen theory generally used to support those outcomes. Courts do not generally consider the merits of each theory, certainly not as part of a holistic overarching view on private law. What unfolds is a nuanced story of a complex interaction between statute and common law.